Hayes v. R.S. Maher & Son, Inc.

Mar 21, 2003
Versions:303 A.D.2d 1018
756 N.Y.S.2d 811
2003 N.Y. App. Div. LEXIS 2925

—Appeal from an order of Supreme Court, Erie County (Sconiers, J.), entered January 7, 2002, which granted the motion of defendant R.S. Maher & Son, Inc. to vacate a default judgment.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: This action seeks damages for serious injuries allegedly sustained by plaintiff Dean C. Hayes as a result of a collision between his pickup truck and a Mack truck owned by defendant R.S. Maher & Son, Inc. (Maher). Plaintiffs appeal from an order of Supreme Court granting the motion of Maher to vacate a default judgment previously entered against it as a consequence of its failure to answer the complaint. The court properly granted Maher’s motion. Maher demonstrated a meritorious defense to the action and reasonable excuse for its default (see Di Lorenzo, Inc. v Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; see also Massachusetts Asset Fin. Corp. v Di Laura, 299 AD2d 948 [2002]; Yacone v Ryan Homes, 216 AD2d 963 [1995]), which resulted from the inadvertence of Maher’s liability insurer (see generally Castillo v Garzon-Ruiz, 290 AD2d 288, 290 [2002]; Parker v I.E.S.I. N.Y. Corp., 279 AD2d 395 [2001], lv dismissed 96 NY2d 927 [2001]; Kondolf v National Grange Mut. Ins. Co., 259 AD2d 1021 [1999]; Barajas v Toll Bros., 247 AD2d 242 [1998]; Chu-Reimer v Metpath, Inc., 227 AD2d 860, 861 [1996]). “Given the brief overall delay, the promptness with which [Maher] moved to vacate the judgment, the lack of any intention on [Maher’s] part to abandon the action, plaintiffs’ failure to demonstrate any prejudice attributable to the delay, and the preference for resolving disputes on the merits, we conclude that [Maher’s] [brief] default in ap*1019pearing [was properly] excused” (Mayville v Wal-Mart Stores, 273 AD2d 944, 945 [2000]; see Massachusetts Asset Fin. Corp., 299 AD2d at 948-949). Present — Hurlbutt, J.P., Kehoe, Gorski, Lawton and Hayes, JJ.